The opinion of the court was delivered by: Stewart, Magistrate Judge
Plaintiff, Otto "Ed" Ziniker ("Ziniker"), was injured while assisting defendant, Ray Waldo ("Waldo"), his son-in-law, with replacing siding on Waldo's lakeside cabin on July 4, 2003. On July 1, 2005, just three days before expiration of Oregon's two year statute of limitations, Ziniker initially filed a Complaint in this court ("original action"), alleging that his injuries were caused by Waldo's negligence and/or gross negligence (docket # 1, Case No. CV-05-1032-BR). This court had diversity jurisdiction pursuant to 28 USC § 1332(a).
Ziniker filed a waiver of service signed by defense counsel on October 21, 2005, within 120 days of filing the complaint as allowed by FRCP 4(m). However, in a diversity case, state law governs service. Torre v. Brickley, 278 F3d 917, 919 (9th Cir 2002) (citation omitted). Under ORS 12.020(1), an action is "commenced" for purposes of ORS 12.110(1) only when a plaintiff has both filed a complaint and served the defendant with a summons "before the expiration of 60 days after the date on which the complaint in the action was filed." Because Ziniker served the summons on Waldo more than 60 days after the filing of the complaint, it did not relate back to July 1, 2005, and fell outside the two-year statute of limitations. For that reason, Waldo filed a Motion for Summary Judgment to dismiss all of Ziniker's claims. Judge Anna J. Brown granted that motion and dismissed the original action on the ground that it was not commenced under ORS 12.110(1) within two years of the accrual of his cause of action and, therefore, was barred by the statute of limitations.
Ziniker timely then filed the present action on July 21, 2006, under Oregon's Saving Statute, ORS 12.220, alleging the same claims against Waldo as in the original action, and again invoking diversity jurisdiction under 28 USC § 1332(a).
Both parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 USC § 636(c) (docket # 32).
Waldo has filed a Motion for Summary Judgment (docket # 9) arguing that Ziniker's claims are barred by res judicata and claim preclusion or, in the alternative, that ORS 12.220 is not applicable to the facts of this case.*fn1 For the reasons that follow, Waldo's Motion for Summary Judgment is denied.
FRCP 56(c) authorizes summary judgment if "no genuine issue" exists regarding any material fact and "the moving party is entitled to judgment as a matter of law." The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 US 317, 323 (1986). Once the moving party does so, the nonmoving party must "go beyond the pleadings" and designate specific facts showing a "genuine issue for trial." Id at 324, citing FRCP 56(e). The court must "not weigh the evidence or determine the truth of the matter, but only [determine] whether there is a genuine issue for trial." Balint v. Carson City, Nev., 180 F3d 1047, 1054 (9th Cir 1999) (citation omitted). A "'scintilla of evidence,' or evidence that is 'merely colorable' or 'not significantly probative,'" does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F2d 1539, 1542 (9th Cir), cert denied, 493 US 809 (1989) (emphasis in original) (citation omitted).
The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F2d 626, 630 (9th Cir 1987). The court must view the inferences drawn from the facts "in the light most favorable to the nonmoving party." Id (citation omitted).
In order to file the present action after the involuntary dismissal of his original action based on the statute of limitations, Ziniker relies on ORS 12.220 which provides in pertinent part as follows:
(1) Notwithstanding ORS 12.020, if an action is filed with a court within the time allowed by statute, and the action is involuntarily dismissed without prejudice on any ground not adjudicating the merits of the action, or is involuntarily dismissed with prejudice on the ground that the plaintiff failed to properly effect service of summons within the time allowed by ORS 12.020 and the statute of limitations for the action expired, the plaintiff may commence a new action based on the same claim or claims against the defendant in the original action if the defendant had actual notice of the filing of the original action not later than 60 days after the action was filed.
(2) If, pursuant to subsection (1) of this section, a new action is commenced in the manner provided by ORS 12.020 not later than 180 days after the judgment dismissing the original action is entered in the register of the court, the new action is not subject to dismissal by reason of not having been commenced with the time allowed by statute.
Despite this Saving Statute, Waldo argues that the present action is barred by res judicata or claim preclusion, which prohibits lawsuits on "any claims that were raised or could have been raised" in a prior action. Stewart v. U.S. Bancorp, 297 F3d 953, 956 (9th Cir 2002) (citations omitted). The preclusive effect of a prior judgment in a diversity action is determined by the law of the state in which the diversity court sits. Semtek, Int'l, Inc. v. Lockheed Martin Corp., 531 US 497, 508 (2001) (citations omitted). Although Oregon courts have not decided whether to apply federal or state law to determine the preclusive effect of a judgment in a prior diversity action, the Ninth Circuit has assumed Oregon would apply federal law. Bates v. Union Oil Co., 944 F2d 647, 649 (9th Cir 1991), cert denied, 503 US 1005 (1992) (citations omitted).
Under federal law, the doctrine of res judicata applies when the earlier action (1) reached a final judgment on the merits; (2) involved the same claim; and (3) involved identical parties or their privies. Leon v. IDX Sys. Corp., 464 F3d 951, 962 (9th Cir 2006) (citation omitted). It is undisputed that the parties (Ziniker and Waldo) and the claims (negligence) are the same here as in the original action. Thus, in order ...